The Catholic Lawyer

Volume 5 Number 4 Volume 5, Autumn 1959, Number 4 Article 3

Domestic Relations in Soviet Law

D. P. O'Connell

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This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please [email protected]. DOMESTIC RELATIONS IN SOVIET LAW

D. P. O'CONNELL*

D URING RECENT YEARS there has been a tendency to regard the changes in the Soviet law of marriage and as an admission of the failure of Marxist social doctrine. One must, however, view those changes with some caution; they are changes of form rather more than of sub- stance. The basic postulates of the Marxist doctrine of the as a social phenomenon remain unaltered, and there has been no decisive shift in emphasis in the civil law which they condition. It must be realized that Soviet legal theory is still struggling to reconcile social stability with the conception of the Soviet in its transitional phase from capitalism to collectivism. Russian law is, in consequence, in almost every aspect in a state of flux and characterized by experimentation. In Lenin's own words the present state of the dictatorship of the proletariat signifies a r6gime "not bound by fixed legal norms." If the outward forms of bourgeois legal institutions such as marriage and the family have in recent years tended to become more consolidated, that may imply nothing more to Soviet theorists than a temporary and entirely utilitarian adjustment of the new social mechanism to the traditional civil law categories. It does not necessarily indicate a fundamental alteration in the Marxist conception of the husband and wife and and child relationships. Engels' thesis that in the classless society of the future the economic basis, and hence the formal institution, of marriage would dissolve and be replaced by true love and affection and a decline of prostitution, would still seem as intrinsic an hypothesis in dogmatic Marxism as the conception of the withering away of the state. Just, however, as the latter is being proved more and more an illusion, so has Engels' naive conception of the family been unrealized. While hesitating, therefore, to ascribe too much significance to the con- temporary development in the Soviet law of marriage, one may legiti- mately discover in it proof that concessions must be made to the natural law if only in the interests of State expediency.

*B.A., LL.M., Ph.D., Reader in Law, University of Adelaide, Australia. 5 CATHOLIC LAWYER, AUTUMN 1959

The Czarist Civil Code of Marriage was tract, an association based on consensus, largely of canonical origin. It required for and in no sense organic. Lenin proclaimed the validity of a marriage between Chris- that "it is impossible to be a democrat and tians a religious ceremony appropriate to a socialist without immediately demanding the denomination of the parties. The only complete freedom of divorce." In the first exception was a marriage between sec- enthusiasm of the Revolution, Bukharin stig- tarians of the Orthodox Church known as matized the family as "a formidable strong.- the Old Believers, which had to be regis- hold of the turpitudes of the old r6gime." tered by the police. The form and validity Alexandra Kollontai asserted that "the fam- of the marriage of non-Christians was regu- ily is ceasing to be a necessity both for its lated by the laws or customs of the religion members and the State." In 1927 Professor or society to which the parties belonged. Brandenburgsky, who as a legal theorist en.- Marriages of Jews were required to be in joyed a privileged position in the Soviet the form prescribed by the Talmud. The hierarchy, asserted that "the family creat- relevant religious law likewise determined ing a series of rights and duties between the capacity of the parties to marry. Ortho- spouses, and children, will certainly dox believers over eighty, for example, were disappear in the course of time and be incapacitated from marrying by a synodal replaced by government organization of decree of 1744 which asserted that "mar- public education and social security." Leg.- riage is established by God for the increase islation attempted to give formal recogni.- of the human race, which is completely tion to this doctrine. Two decrees of 19 and hopeless to expect from anyone eighty years 20 December, 1917, consolidated in the old." Divorce was likewise a matter of ec- Code of 1918, abolished the old ecclesias- clesiastical or customary law. The Russian tical laws and jurisdictions, and substituted Eastern Christian Church permitted divorce for them a new law of civil marriage and on the grounds of adultery, impotency, con- divorce. Only civil marriage was recognized. viction for penal offences with deprivation It could be contracted by registration and of civil rights, absence without indication of dissolved by mutual consent. The practice whereabouts by one spouse for five years, arose of divorce by postcard addressed to and the decision of the spouses to enter the the registrar's office. In the absence of mu-. religious life. The divorce decrees of the tual consent the divorce procedure was Orthodox ecclesiastical tribunals and those based on the petition of one party. No of the Protestant tribunals were recognized grounds other than consent or incompatibil- by the imperial law. There was no divorce ity were required. The only concession between Catholics, and questions of nullity made to the natural law in this legislation and separation involving Catholics were re- was in the rules relating to capacity. Males served for the appropriate ecclesiastical of eighteen and females of sixteen years of processes. age alone could contract marriage, and The Revolutionaries displayed character- marriages between ascendants and de-- istic haste in abolishing all institutions of scendants, brothers and sisters were pro- status, and repudiating all natural relation- scribed. The more doctrinaire elements in ships of superior and inferior. Marriage in the Soviet remained dissatisfied with the their eyes was exclusively a matter of con- survival of even these vestiges of the tradi- SOVIET DOMESTIC RELATIONS tional institution of marriage, and after society. The duty of maintenance was spe- 1918 the general trend of legislation was cifically incorporated in the Code of 1926, in the direction of the complete elimination but again the motive was the same. The of the concept of marriage from the law. Soviet did not intend to make a social se- The 1926 Code of Marriage Laws' repre- curity system a substitute for the economic sents the ultimate formulation of the doc- dependence of the infant and disabled upon trinaire view. It was no longer necessary their next of kin. This is clear from the for parties to register in order to marry. judicial interpretation of the provision in Their de facto , together with question. As the Supreme of the circumstantial evidence of the relative per- Soviet stated in a judgment in 1929, "the manence of the liaison, alone sufficed. All right of maintenance may not be used as a judicial procedure for divorce was abol- means of promoting parasitism and leisure ished. The bond between the parties could of some members of the family at the be severed unilaterally and without stating labour and expense of others." reasons; when the consensus of one party The prevailing attitude towards sexual was withdrawn the basis of the marriage relationship was reflected also in legislation disappeared. A common surname might be in 1920 legalizing abortion, and in the employed as the parties pleased. If one failure of all the Soviet codes save those of spouse changed his or her abode there was Georgia and Azerbaijan to penalize . no obligation on the part of the other to In those Republics the motive behind the follow. Neither spouse enjoyed any evi- employment of the law in the suppression dentiary privilege in litigation involving the of bigamy was the elimination of polygamy other. It followed logically from this view as "a relic of tribal society, based on the of marriage that not the formal institution exploitation of woman's toil." The Federal but mere fact created the relationship of Supreme Court in 1929 even went so far parent and child, and all distinction of as to confirm on appeal the decision of an was abolished. In the new mil- inferior court that two persons were entitled lenium, which in the early 1920's was re- to share as wives in the distribution of a garded as impending, no legal significance deceased's estate. Bigamy ceased during the whatever would be attributed to the hus- 1920's to have any juridical significance, band and wife and parent and child con- and was regarded as a sociological concept nections. No obligation on the one side or alone. In none of the other Republics was 2 the other would arise from these connec- or homosexuality a criminal offence. tions. In the 1918 Code nothing was said of The more responsible elements in the the obligation of maintenance and support government of the Supreme Soviet would save where the spouse or child was destitute, seem to have been early aware of the moral and in this latter case the rationale of the excesses which the orthodox theory and its obligation was not a natural relationship but implementation in the law invited and en- the desirability of transferring from the couraged. Lenin himself exclaimed "our State to the individual the economic respon- youth has gone mad, completely mad. It sibility for the non-productive elements in has become the evil fate of many young

I R.S.F.S.R. LAWS 1926, text 612. Translated in 2 See generally BERMAN, JUSTICE IN RUSSIA ch. 12 2 GSOVSKI, SOVIET CIVIL LAW 239 (1948). (1950); 2 GSOVSKI, op. cit. supra note 1, at 118. 5 CATHOLIC LAWYER, AUTUMN 1959 men and girls. Its devotees assert that this in the economic system. In their totality is Marxist theory." Official pronouncements those steps were characteristic of the new on marriage became less and less extrava- phase of Soviet policy which has become gant in their terms, and promiscuity was defined as "Stalinism," the indefinite pro- increasingly discouraged. According to the jection of the "transitional stage" of Marx- few statistics available to us, whether or not ist organization. The new line was reflected they are reliable, the powers that be had in an article of 28 May, 1936, in Pravda: occasion for alarm by the mid-1930's. In "So called free love and loose sexual life Moscow in 1935 the number of abortions are throughout bourgeois and have nothing (estimated at over 12,000 a month) ex- in common either with socialistic principle ceeded substantially the number of births. and ethics or with the rules of behaviour of In 1935 for every 1,000 marriages there a Soviet citizen. Marriage is the most seri- were 383 . (It is assumed that the ous affair in life. Fatherhood and Mother- figures relate to registered marriages, and hood become virtues in the Soviet." Gsovski it may be taken that the incidence of "di- quotes an even more "reactionary" enuncia- vorce" was much higher in the case of tion of Boshko, a professor of law, in an unregistered "marriages.") The dissolution official publication: "Marriage by its basis of family life brought additional evils in its and in the spirit of the Soviet law is in prin- train, not the least of which was a stagger- ciple essentially a lifelong union. Moreover, ing spread of . The marriage receives its full lifeblood and value administrative branch of the Procuracy was for the Soviet State only if there is birth of overburdened with the task of locating children, proper upbringing, and if the putative fathers, entertaining affiliation suits spouses experience the highest happiness of against them, and enforcing payment of motherhood and fatherhood." These, and maintenance. Anyone with experience in other references to the "sanctity" of mar- this field in our will appreciate the riage do not imply any acceptance of the impossible task which the Procuracy was traditional metaphysical character of the in- expected to undertake. The problem of the stitution, but are intended to impress the unmarried mother became one of economic Russian people who are peculiarly awed by urgency and national importance, especially whatever is sacrosanct. Nevertheless, from since it occasioned widespread absenteeism 1936 the tendency has been toward a meta- from factories and farms. physical conception of marriage, whether it After 1935 the pendulum began inevi- be recognized officially as such or not. After tably to return to the opposite extreme. 3 The 1935 parents could be fined for the delin- traditional institutions of social stability quency of their children, and were made were consolidated by a series of steps which jointly liable with children over the age of indicate an awareness of the need for con- fourteen years for acts of intentional vio- tinuity with the past and of a sense of lence and damage. 4 This liability was ex- tradition. The objectives were the elimina- tended by Decree of the Praesidium in 1941 tion of delinquency, the increase in the to acts of negligence. In short, the concept birth rate, and the integration of the family 4 On the 1935 decrees, see Berman, Soviet Law Reform - Dateline Moscow 1957, 66 YALE L. J. 3 TIMASHEFF, THE GREAT RETREAT 192 (1941). 1191 (1957). SOVIET DOMESTIC RELATIONS of parental responsibility was restored. In process. After that date, however, such chil- 1934 homosexuality was made an offence, dren have no right to the father's name, no and in 1936 abortion. In 1938 judgment succession to his property, and no claim on was given that a marriage registered while his support. The mother is provided for by a previous marriage remained undissolved the State alone. In substance, therefore, the did not create any juridical consequence for traditional distinction of legitimacy is re- the parties since "the ." Legal stored even if the terminology is not. As one textbooks reflected the tendency to regard Russian commentator observes, "it remains bigamy as illegal, though not necessarily to be seen whether the change in legal status criminal. It assumed a criminal character will be followed in daily life by a social by legislation constituting marriage for the stigma of illegitimacy." sole purpose of seduction rape. To what extent the new has In 1934 a very practical obstacle to di- conduced to a stabilizing of family relation- vorce was introduced in the form of a scale ships can, however, be gauged only from a of fees. Fifty rubles was made the fee for consideration of the divorce provisions of the first divorce, one hundred and fifty for the Decree and their application in the the second, and three hundred for subse- courts. The unrestricted competence of quent ones. The tremendous losses in pop- either partner to dissolve the marriage with- ulation during the war accelerated the proc- out reasons, and in opposition to the will ess of strengthening of the marriage bond, of the other partner, was ended, and a judi- and the practical result was a Decree of the cial process of divorce introduced. Praesidium of the Supreme Soviet of 8 July 1944,1 which was inspired by the desire to Divorce is no longer merely a matter of encourage large . The preamble registering the discontinuance of cohabita- stated that "care for mother and child and tion but constitutes an annulment of a support of the institution of the family have status relationship. It is granted not as of always been among the most important right upon the withdrawal of consensus, duties of the Soviet State." After providing but only at the discretion of the court. No for unmarried mothers, establishing State are stated in the De- grants to large families, extending privileges cree of the Praesidium, and it is the re- to expectant mothers, and creating a graded sponsibility of the court in each instance to tax on bachelors and fathers of small fami- determine whether the reasons put forward lies, the Decree proceeded to restore the for terminating the marriage are sufficient. legal institution of marriage. Only a regis- It is clear, therefore, that the Decree has tered marriage would for the future be rec- not altered the basis of Soviet marriage law, ognized as having legal effect, and as cre- namely the voluntary consent of the par- ating rights and duties of husband and wife ties, but has merely instituted a procedure and parenthood. The mother of a child whereby indiscriminate changing of spouses born before the date of the Decree outside might be checked. This seems to be clear a registered marriage might claim from the attitude of the courts. Accurate from the natural father after affiliation statistics are not available, but Sverdlov analysed some four hundred divorce suits 5 1 GsovsKI, SOVIET CIVIL LAW 120 (1948). decided by eighteen courts, and extracted 5 CATHOLIC LAWYER, AUTUMN 1959 from them certain principles on which the is no ground for divorce when there are in- courts have acted. 6 fant children, and even in cases where there Sixty-six per cent of the suits were ini- are not. When two grandparents quarrelled tiated with the consent of the respondent. over the bringing up of grandchildren after In every such case a decree was granted, forty years of married life, a divorce granted and Sverdlov concludes that mutual con- on this ground was reversed by the Supreme sent is regarded by the courts as sufficient Court of the R.S.F.S.R. In 1948 the Su- in itself to constitute a ground for divorce. preme Court of the U.S.S.R., in reversing Of the contested suits twenty-three per cent a decision of the Supreme Court of the were refused on the grounds of absence of Azerbaijan Soviet, discussed the purpose guilt. In each case there were infant chil- underlying the Decree of 1944. That De- dren. Decrees were granted in the re- cree, it stated in the judgment, maining contested suits on the ground of is directed to the strengthening in every way adultery, mutual incompatibility or chronic of the family and of the marital life of the illness. Of the total number of petitions spouses. The dissolution of marriage can presented only five to six per cent were re- consequently take place only if such facts fused, and it seems that Gsovski's comment were established by the court as provide a basis for considering that the family has dis- that it is now more difficult to obtain a integrated and there is no possibility of its divorce in the Soviet Russia than in many restoration. The reference to "incompatibil- capitalist countries should be treated with ity," without explanation of how it mani- caution. If there is any real restraint on fested itself, is obviously insufficient and divorce it arises from certain practical con- cannot provide a basis for the decision pro- nouncing the dissolution of the marriage. siderations and procedural obstruction and The court also ought not to have overlooked not from the principle. The fees for filing the fact that the spouses have been married the petition and registering the decree, for since 1945 and that they have a little boy.7 example, are scaled to restrain the irre- It must be noted, however, that both these sponsible. A divorce costs, according to the suits were disputed. court's discretion, between six hundred and Further evidence of a trend away from two thousand one hundred rubles (between the notion of the State as the sole source of $150 and $550 approximately). In addi- education and in favour of the traditional tion the petitioner has to pay for the pub- role of the parent is found in the few lication of the papers in the suit in the local reports of custody suits available to 'us: The- press. The procedure-is-cumbersome. There Supreme Court of the U.S.S.R., in an ap- must be an attempt at reconciliation before the People's Court, and only then may a peal from the Supreme Court of Georgia, discussed at length the basis of a grant of petition be presented to the divorce court. custody. The court, it was held, must con- In addition to the cases assembled by sider primarily the interests of the child. In Sverdlov several others are available which doing so it must bear in mind that those seem to indicate that mere incompatibility interests are not secured solely by the ma- 6 Sovietspoye Gosudarstro i pravo, No. 7, p. 22 (1946), translated in 11 MODERN L. REV. 163 (1948). See discussion by Wolff in 12 MODERN L. 7 Sotsialisticheskaia Zakonnost (Socialist Legality) REV. 290 (1949). No. 5, p. 60 (1948). SOVIET DOMESTIC RELATIONS terial conditions necessary for its upbring- other reason, to consolidate itself. The law ing. The peculiar relation of mother and is creating in many directions a vested in- infant was more important than any mate- terest in the permanence of marriage. When rial conditions. The case is rather signifi- a spouse dies, his or her share in the matri- cant in view of the fact that the father, who monial property does not fall into the estate was a professor of pedagogy, was in a posi- but is transmitted automatically to the sur- tion to give the child an advanced commu- vivor. The matrimonial home, if acquired nist education, whereas the mother, it was after marriage, can only be disposed of admitted, was not. Custody was neverthe- with the consent of both parties. The same less given to the mother.8 tendency is emphasized in legal texts in the To what extent the modern law repre- assembly of matters of domestic concern sents any decisive trend away from dog- under one rubric; in the provision for guar- matic Marxism is difficult to decide in the dianship of infants and curatorship of absence of more reliable facts, and it is minors under rules analogous to those of equally difficult and perhaps unwise to sug- Roman law systems; in the like provision gest in what direction the law of domestic for ; and in an elaborate code of relations will next advance. It would seem maintenance laws under which destitute or that a tension has been set up in Soviet law, infirm brothers, sisters, grandparents and between the conflicting demands of Marx- parents may claim support from their rela- ist theory, with its repudiation of all status tives. It might be concluded, therefore, that relationships, and the need to preserve the types of social relation, which the Civil consonance between human nature and Code preserved only in the interests of na- social organization. The present situation is tional expediency, are recognized to be so clearly a compromise, despite the myth of fundamental as to create of their own char- Revolutionary continuity, and is, in conse- acter rights and duties which the law must quence, highly unstable. It seems, however, continue to recognize and protect. Soviet that the matrimonial bond will continue, law has thus ceased to be merely a tech- under the pressure of economics if for no nique subservient to a political goal, and is tending to base itself, however unwilling, 8 See BERMAN, op. cit. supra note 2, at 239. ever more securely on the natural law.